EFF Argues That Automated Bogus DMCA Takedowns Violate The Law And Are Subject To Sanctions

from the yes,-but... dept

Having just been victimized by a bogus DMCA takedown notice that censored our content, I'm certainly aware of ways in which the process needs to improve (a notice-and-notice provision, rather than a notice-and-takedown provision, would be a big, big start). However, as we have detailed here in the past, these automated takedowns are pretty typical—and they're becoming an issue in a particular lawsuit. Hollywood went after Hotfile pretty strongly, but as part of Hotfile's countersuit showed, Warner Bros. in particular seemed to have a habit of issuing takedown orders on content it had no rights to.

That's a pretty big concern, no matter what the "intentions" of those breaking the law. Warner Bros.' response takes a pretty cavalier attitude, more or less amounting to "hey, mistakes were made; no biggie" . The specific law on bogus takedowns -- 512(f) of the DMCA -- only says that there's punishment for those who "knowingly materially misrepresent." Warner Bros., of course, insists that just making a mistake does not trip that wire.

The EFF has now jumped in with an amicus brief that argues otherwise. The argument is pretty straightforward: if you're doing automated, or semi-automated takedown notices without reviewing them, the efforts are so careless and negligent that they clearly misrepresent the claims needed for a legitimate DMCA takedown. The filing notes that such automated takedowns are a real problem (even citing our recent experience), and that if such automated takedowns aren't liable for sanctions under 512(f) then that section is effectively meaningless.

Indeed, if Warner were correct, which it is not, Section 512(f) would become largely
superfluous. Any company could sidestep accountability for improper takedowns by simply
outsourcing the process to a computer. What is worse, copyright owners would have a perverse
incentive to dumb-down the process, removing human review so as to avoid the possibility of
any form of subjective belief. The tragic consequences for lawful uses are obvious: untold
numbers of legal videos would be taken down, whether or not the uses were fair or even
licensed.

Imagine the potential for mischief: Let’s say that Warner does not like competition from
Universal. It could set a computer to search through Universal’s online presence, with the
loosest possible settings, and issue takedown after takedown to Universal’s ISP for spurious
claims. Nor is this scenario far-fetched: as noted above, supra at 4-5, anticompetitive uses of the
DMCA takedown process are commonplace.

Among other things, the EFF filing highlights the Lentz v. Universal ruling that found that those filing takedowns have to take fair use into account -- and pointing out that you can't take fair use into account if you're automating takedowns.

Unfortunately, historically, 512(f) has been a pretty toothless part of the law in response to bogus takedowns. The bar has been way too high. This is partly why we thought the parallel "remedy" that was found in SOPA was also likely to be equally useless. Attempts to make it stronger were rejected because those behind the bill knew it was toothless. Having the court agree with the EFF's position on this would be a huge help in giving those who are victims of bogus takedowns a tool to fight back.